Opinion
1719/09.
February 8, 2011.
Plaintiff pro se.
Defendant Catalano Gallardo Petropoulos LLP, Jericho NY.
This action for legal malpractice, breach of contract, fraud, intentional infliction of emotional distress and defamation stems from the representation by defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. (collectively "SCHECHTER") of pro se plaintiff ALEXANDER BREYTMAN (BREYTMAN) in actions for malicious prosecution and false arrest against the City of New York and plaintiff's former landlord.
Ultimately, plaintiff BREYTMAN, after disagreeing with SCHECHTER about case strategy and engaging in abusive conduct toward SCHECHTER, terminated his representation by SCHECHTER in late November 2006. Plaintiff continued the actions as a pro se litigant, but failed to prevail against the City of New York and the landlord. Despite terminating SCHECHTER, plaintiff BREYTMAN continued to harass SCHECHTER and blamed SCHECHTER for not prevailing against the City and the landlord. In this action, plaintiff continued to harass SCHECHTER by serving papers directly upon SCHECHTER, not SCHECHTER's counsel, in violation of procedure and my preliminary conference order.
In the instant action, defendants move for: summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR Rule 3212 (a); and, enjoining plaintiff from initiating further litigation against defendants and from any further contact with defendants without prior court approval. Plaintiff cross-moves for a sanction of $10,000.00 against SCHECHTER, pursuant to 22 NYCRR § 130-1.1, "for being force against nonsensical motion for summery judgment that Donald Schechter is not entitled too and adding harassment to the complaint as sanction and order for protection from harassment and ordering Donald Schechter to pay $10,000.00 for being to defend against said motion [sic]." Plaintiff served the notice of cross-motion and supporting affidavit directly upon SCHECHTER, not upon SCHECHTER's counsel.
As will be explained, defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. are granted summary judgment and dismissal of the instant complaint. Plaintiff BREYTMAN is enjoined from commencing future litigation in the New York State Unified Court System against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. without prior approval of the appropriate Administrative Justice or Judge. Defendant ALEXANDER BREYTMAN's cross-motion for sanctions against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. is denied.
Background
BREYTMAN met with SCHECHTER in October 2003 regarding claims he sought to assert against the City of New York and his former landlord, the landlord of a Bronx apartment building, where he lived from about 1994 to January 2003. According to SCHECHTER, BREYTMAN told him that after the landlord purchased the building in 2001 or 2002, the landlord allegedly let the building fall into disrepair. Then, BREYTMAN formed a tenants' association and took the landlord to Housing Court to obtain repairs. BREYTMAN claimed, as a result of this, the landlord cut his telephone line, sent him harassing letters and falsely accused him of vandalizing the entrance door of the building by placing glue in the locks. Further, plaintiff alleged that he was arrested for vandalizing the locks. Then, after plaintiff made numerous court appearances in his criminal case, the Bronx County District Attorney's Office successfully moved to dismiss the criminal action because it could not meet its burden of proof. Moreover, plaintiff BREYTMAN told SCHECHTER that as a result of his arrest he suffered from stress and depression and then lost his job and apartment.
Plaintiff, on October 3, 2003, signed a retainer agreement for $7,500.00 with SCHECHTER [exhibit C of motion] for SCHECHTER's legal services in representing him in an action for malicious prosecution against the City of New York, the arresting detective and the landlord. SCHECHTER claims that he explained to BREYTMAN the difficult nature of the case and he never guaranteed plaintiff that he would win.
SCHECHTER had plaintiff sign authorizations for the release of plaintiff's medical records to support his claim and filed, on October 8, 2003, the notice of claim against the City of New York. Then, on November 25, 2003, SCHECHTER appeared with BREYTMAN at a General Municipal Law § 50-h hearing, where plaintiff testified about his claim and alleged injuries. Subsequently, defendants filed a complaint against the City of New York, the New York City Police Department and the arresting detective.
SCHECHTER also prepared and filed, on October 10, 2003, in Supreme Court, Bronx County, a complaint against the landlord and the building superintendent, who, according to plaintiff, falsely reported that BREYTMAN vandalized the building locks. All defendants were served. They answered, on December 2, 2003, asserting counterclaims that plaintiff left his apartment in a state of total disrepair when he moved out. SCHECHTER prepared and served a reply denying the counterclaims. The City of New York answered the complaint, on February 13, 2004. Then, the landlord prevailed on its motion to change venue to New York County. Following the change of venue, discovery took place in both actions and SCHECHTER prepared a bill of particulars, which was served on May 19, 2004, in response to a 38-item demand by the landlord.
SCHECHTER, in February 2004, referred plaintiff to a psychologist for an evaluation. He explained to BREYTMAN that he would need a psychologist to establish his current psychological status and determine a casual connection between plaintiff's arrest and prosecution and any psychological injuries he sustained. The psychologist examined him on three different dates and on May 3, 2004 issued a report. SCHECHTER advised plaintiff that the $1,500.00 fee for the expert psychologist's services would have to be paid by BREYTMAN, because the $7,500.00 retainer was for legal services, not experts' fees.
There were delays in having a preliminary conference. The preliminary conference in the landlord action was held on September 16, 2006. Shortly thereafter, SCHECHTER moved to consolidate the City action with the landlord action. The landlord cross-moved for summary judgment. SCHECHTER claims that at this time, in late 2006, his "relationship with plaintiff began to deteriorate. Plaintiff began engaging in abusive behavior and began undermining his claims . . . by instituting separate lawsuits which I did not believe had any merit. Plaintiff disregarded my advice . . . and proceeded to prosecute the [separate] actions pro se [¶ 24 of SCHECHTER's affidavit in support of motion]." SCHECHTER continued representing BREYTMAN, despite plaintiff's abusive and detrimental conduct, preparing opposition papers to the landlord's summary judgment motion and serving them on November 21, 2006.
SCHECHTER, on the next day, advised plaintiff BREYTMAN that he would seek to be relieved. Plaintiff responded with a rambling letter, dated November 31, 2006 [sic], repeatedly accusing SCHECHTER of senility and incompetence, and then in larger print and boldface stating "YOU ARE FIRED" [exhibit D of motion]. Thereafter, on December 7, 2006, plaintiff BREYTMAN served SCHECHTER with a "Notice with Motion to Compel and Cease and Desist," in which he advised SCHECHTER that he would proceed pro se and requested the file and "privileged material" [exhibit E of motion]. Typical of Breytman's abusive behavior is a letter, dated January 2, 2007 [p. 148 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY], from BREYTMAN to SCHECHTER, in which BREYTMAN called SCHECHTER, among other things, "incompetent habitual liar," "pure Asshole" and "cretin."
Justice Karen Smith of Supreme Court, New York County, on March 7, 2007, issued a decision and order [exhibit F of motion], in which she: consolidated the two actions; dismissed all malicious prosecution claims; and, permitted the false arrest claim to proceed against the landlord and the building superintendent. Justice Smith, in a separate order the same day, March 7, 2007, relieved SCHECHTER as counsel for plaintiff BREYTMAN. Subsequently, while plaintiff proceeded as a pro se litigant, the remaining false arrest claim against the non-city defendants was dismissed [exhibit 1 of cross-motion].
Despite being relieved as BREYTMAN's counsel, SCHECHTER's contact with BREYTMAN, as well as BREYTMAN's abusive conduct toward SCHECHTER, did not end. SCHECHTER had the entire file photocopied and available for plaintiff. Plaintiff wanted the original file, despite being informed by Justice Milton Tingling, to whom the case had been reassigned in Supreme Court, New York County, that he was only entitled to a copy of the file. SCHECHTER explained, in ¶ 30 of his affidavit in support of the motion, that "[w]hile I had offered to provide plaintiff with a copy of the file, I did not want to provide him with the original out of concern that he might alter the original documents. In proceedings before the court in the underlying actions, plaintiff submitted copies of my letters which left out words and sentences or were otherwise altered."
On December 5, 2008, long after SCHECHTER provided BREYTMAN with a copy of the file, BREYTMAN served SCHECHTER with a subpoena for the original file, in connection with another of his pro se actions against the landlord, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY, Supreme Court, Kings County, Index No. 2423/06 [exhibit G of motion]. Then, SCHECHTER served an order to show cause [OSC], dated December 12, 2008, to quash the subpoena and for a protective order [exhibit H of motion]. In his affirmation in support of the OSC, SCHECHTER pointed out how BREYTMAN altered documents to place SCHECHTER in a bad light and spent $1,091.34 to have the entire file copied for BREYTMAN. Then, BREYTMAN, in a letter to SCHECHTER, dated December 29, 2008, told SCHECHTER that he had twenty days to deliver "my property" but "[y]ou had chosen death you got no one to blame but yourself I am given another 10 days more days to deliver my property after which you fund how unwise your obtuse decision is [sic] [p. 206 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY]."
While this issue was pending before Justice Yvonne Lewis, BREYTMAN, in a February 18, 2008 letter to Justice Lewis [exhibit I of motion], admitted that he altered documents to redact privileged material. The same day, BREYTMAN sent a letter to SCHECHTER [exhibit J of motion] in which he told SCHECHTER "[a]s usually you are fat on your mouth short on your feet [sic]," "I will sue" and "show how incompetent you are." Justice Lewis, on February 25, 2009, granted SCHECHTER's OSC to quash the December 5, 2008 subpoena. Further, she ordered that BREYTMAN "shall not file the same or similar applications for relief without the prior written permission of the Court."
Justice Lewis, at the February 25, 2009 oral arguments on SCHECHTER's OSC, told plaintiff not to directly contact SCHECHTER. However, plaintiff BREYTMAN continued to directly contact SCHECHTER with motion papers [exhibit M of motion]. SCHECHTER's counsel sent a letter to BREYTMAN, dated June 18, 2010, advising him not to directly serve SCHECHTER [exhibit K of motion]. In the February 22, 2010 preliminary conference order in the instant action, signed by myself, plaintiff was ordered "to have no contact with defendant directly [exhibit L of motion]." However, plaintiff violated my order by subsequently sending an abusive letter [exhibit N of motion] to SCHECHTER, stating "[t]ake your [threats] and your family and shove up your ass you dick. I will only serve you. I suppose [being an] asshole runs in the family. I do not recognize your family, get used to it, you ASSHOLE DICKHEAD."
Despite being ordered by Justice Lewis, on February 25, 2009, to "not file the same or similar applications for relief without the prior written permission of the Court," plaintiff commenced the instant action, by filing the summons and his rambling, disjointed verified complaint on January 23, 2010, with eight causes of action, many of them duplicative. Plaintiff seeks, according to the verified complaint: the return of the $7,500.00 retainer; the return of the $1,500.00 psychologist's fee; $5,000,000.00 for breach of contract; $5,000,000.00 "for causing me paint and suffering [sic]"; $10,000,000.00 for punitive damages; and, the return of the original file and all copies of any material in the file.
Discussion
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. ( See Alvarez v Prospect Hospital, 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. ( Winegrad v New York University Medical Center, 64 NY2d 851; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc. , 51 AD3d 651 , 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).
CPLR 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. ( Boyd v Rome Realty Leasing Ltd. Partnership , 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. ( Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065; Fotiatis v Cambridge Hall Tenants Corp. , 70 AD3d 631 , 632 [2d Dept 2010]).
Defendants SCHECHTER met their CPLR Rule 3212 (b) burden with a prima facie showing to the Court that as a matter of law plaintiff BREYTMAN's causes of action have no merit. Moreover, after viewing the evidence in support of SCHECHTER in the light most favorable to BREYTMAN there are no issues of material fact that would bar the Court from directing judgment in SCHECHTER's favor. Plaintiff BREYTMAN, in his opposition papers, fails to show that there are triable issues of fact. All eight causes of action are dismissed as a matter of law.
Plaintiff's eight causes of action are all variations on the same theme of legal malpractice. "The elements of a cause of action sounding in legal malpractice are that the defendant attorney breached a duty of care to the client and that the breach was a proximate cause of actual damages ( Tortura v Sullivan Papain Block McGrath Cannavo, P.C. , 21 AD3d 1082 , 1083 [2d Dept 2005]; DeGregorio v Bender , 4 AD3d 384 [2d Dept 2004]; Aversa v Safian, 303 AD2d 700 [2d Dept 2003])." ( DiGiacomo v Levine , 76 AD3d 946 [2d Dept 2010]). ( See Rudolph v Shayne , Dachs, Stanisci, Corker Sauer , 8 NY3d 438 , 442; Boone v Bender , 74 AD3d 1111 , 1112 [2d Dept 2010]; Maiolini v McAdams Fallon, P.C. , 61 AD3d 644 , 645 [2d Dept 2009]; Hamoudeh v Mandel , 62 AD3d 948 , 949 [2d Dept 2009]). The Court, in Natale v Samel Assoc. ( 308 AD2d 568, 569 [2d Dept 2003]), instructed:
To succeed in an action to recover damages for legal malpractice, a plaintiff must establish that (1) the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community, (2) the attorney's negligence was a proximate cause of the loss sustained, (3) the plaintiff incurred damages as a direct result of the attorney's actions, and (4) the plaintiff would have been successful if the attorney had exercised due care.
( See Olaiya v Golden , 45 AD3d 823 , 823-824 [2d Dept 2007]; Mourtil v Korman Stein, P.C. , 33 AD3d 898 , 899 [2d Dept 2006]; Avery v Sirlin , 26 AD3d 451 [2d Dept 2006]).
Moreover, defendants supported their instant summary judgment motion with an affirmation from Steven B. Samuel, Esq., who has been qualified in New York Courts as an expert in legal malpractice actions. Mr. Samuel reviewed: plaintiff's complaint; SCHECHTER's affirmation in support of the motion; the file maintained by SCHECHTER in connection with his representation of plaintiff BREYTMAN in the underlying malicious prosecution and false arrest claims; and, recent cases with respect to the elements and proof required in an action for malicious prosecution and false arrest. Mr. Samuel noted that BREYTMAN's separate pro se lawsuits against the landlord for negligence and civil rights violations, against the advice of SCHECHTER, hurt the cases in which SCHECHTER represented BREYTMAN. He asserts that plaintiff's negligence claims against SCHECHTER "amounts to little more than a client's criticism of his attorney's strategy [¶ 32 of Samuel affirmation]" and "Mr. Schechter's selection of the theories under which to proceed was entirely appropriate under the circumstances [¶ 33 of Samuel affirmation]." In ¶ 35 of his affirmation, he states correctly that "it is well settled under New York law that an attorney cannot be held liable for discretion exercised during the course of a litigation. See Rosner v. Paley, 65 NY2d 735."
The Court, in Ideal Steel Supply Corp. v Beil ( 55 AD3d 544 , 546 [2d Dept 2008], quoted from Rosner v Paley at 738, that "the selection of one among several reasonable courses of action does not constitute malpractice," when it affirmed the dismissal of a legal malpractice action based upon the choice of a claim to pursue by plaintiff's counsel, to the exclusion of other claims. Mr. Samuel concludes, in ¶ 42 of his affirmation, that "I can state with a reasonable degree of certainty that Mr. Schechter's representation of plaintiff comported with the standard of care of a reasonable prudent attorney, and there is no merit to plaintiff's claim of negligence against Mr. Schechter."
Since plaintiff BREYTMAN's claims are primarily for legal malpractice, he was required in opposing defendants' summary judgment motion to present "an expert affidavit delineating the appropriate standard of professional care and skill' that the defendants were required to adhere to under the circumstances." ( Schadoff v Russ, 278 AD2d 222, 223 [2d Dept 2000], citing Greene v Payne Wood Littlejohn, 197 AD2d 664, 666 [2d Dept 1993]). Plaintiff's failure to present an expert affidavit requires the granting of defendants' motion for summary judgment and dismissal of plaintiff's legal malpractice claim. (See Natale v Samel Assoc. at 569; Schadoff at 223). Plaintiff's opposition papers are a rambling stream of consciousness, full of typographic and grammatical errors, misstatements of law and, at various points, almost incomprehensible. Thus, "plaintiff failed to meet [his] burden of demonstrating the existence of a factual issue requiring the trial of the action . . . The plaintiff's opposing papers consisted almost entirely of conclusory statements or unsubstantiated allegations regarding legal malpractice and fraud, which do not constitute sufficient proof to defeat the motion for summary judgment." ( Wilkerson v Buonomo Thaler, 199 AD2d 260, 260-261 [2d Dept 1993]).
The first cause of action is a hybrid claim for negligence, alleging that SCHECHTER advised plaintiff BREYTMAN not to file related pro se actions, and for breach of a contract by claiming that SCHECHTER violated the retainer agreement by requesting that plaintiff pay for his psychological evaluation. SCHECHTER was not negligent in his representation of plaintiff in the underlying actions and with respect to his advice to plaintiff regarding the commencement of additional pro se lawsuits against the landlord. As noted above, in Rosner v Paley and Ideal Steel Supply Corp. v Beil, an attorney cannot be held liable for exercising discretion during litigation. "Attorneys may select among reasonable courses of action in prosecuting their clients' cases without thereby committing malpractice ( see Rosner v Paley, 65 NY2d 736, 738)." ( Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]. "A purported malpractice claim that amounts only to a client's criticism of counsel's strategy may be dismissed." ( Dweck Law Firm, LLP v Mann, 283 AD2d 292 [1d Dept 2001]). Plaintiff's breach of contract element in the first cause of action fails. The retainer agreement is clear. By its terms plaintiff BREYTMAN was paying SCHECHTER for legal services only. It did not indicate that the money which plaintiff paid SCHECHTER was to be used for the fees of experts. Therefore, plaintiff's first cause of action is dismissed.
The second cause of action also sounds in negligence. Plaintiff alleges again that SCHECHTER failed to return to plaintiff the file and failed to assert civil rights claims against the landlord. This claim lacks merit. SCHECHTER provided plaintiff with a complete copy of the file he maintained while representing plaintiff. Plaintiff failed to identify a single document which SCHECHTER had not produced for him. SCHECHTER's alleged failure to assert civil rights claims against the landlord was done in SCHECHTER's exercise of discretionary judgment during the course of litigation and SCHECHTER is not liable for this. ( See Rosner v Paley; Ideal Steel Supply Corp. v Beil; Palazzolo v Herrick, Feinstein, LLP; Dweck Law Firm, LLP v Mann). Therefore, plaintiff's second cause of action is dismissed.
The third cause of action alleges fraud, claiming that SCHECHTER "split the money" with the psychologist and took the case despite not being able to prove malice to support false arrest and malicious prosecution. SCHECHTER points out, in ¶ 42 of his affidavit in support of the motion, that plaintiff drew a check to the order of the examining psychologist and denies splitting any fee with the psychologist. With respect to malice, SCHECHTER, also in ¶ 42 of his affidavit in support of the motion, concludes that there was more than adequate evidence to establish malice needed to support the false arrest and malicious prosecution claims, including that plaintiff was a tenant organizer and had taken the landlord to court on numerous prior occasions. "The actual malice' element of a malicious prosecution action does not require a plaintiff to prove that the defendant was motivated by spite or hatred . . . Rather, it means that the defendant must have commenced the prior criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served." ( Nardelli v Stamberg, 44 NY2d 500, 502-503). In plaintiff's criminal action, the Bronx County District Attorney had the action dismissed because it could not meet its burden of proof. This gives rise to an inference of malice. ( See Fortunato v City of New York , 63 AD3d 880 [2d Dept 2009]). Therefore, plaintiff's third cause of action is dismissed.
The fourth cause of action, also sounds in negligence, alleging that SCHECHTER committed negligence by stipulating with landlord's counsel to allow the landlord to file a late answer and also stipulating to allow landlord's summary judgment motion to be heard on the same day as the motion for consolidation. Allowing a defendant to serve a late answer after a de minimus delay is not a departure from the standard of care of a reasonable attorney. It is good practice to avoid having defendant's insurance carrier disclaim for late notice. Also, stipulating to allowing two motions to be heard on the same day does not amount to a departure from the standard of care of a reasonably prudent attorney and did not prejudice plaintiff's actions. Therefore, plaintiff's fourth cause of action is dismissed
The fifth cause of action alleges intentional infliction of emotional distress, claiming that SCHECHTER "went on a rampage in letters . . . and in court with frivolous behavior with lies [¶ 64 of verified complaint]" which "cause me sever pain and suffering for physiological effects . . . and causing me stress [sic] [¶ 68 of verified complaint]." SCHECHTER, in ¶ 46 of his affidavit in support of the motion, states "I did not in any way intend to inflict any emotional distress on plaintiff, and would like nothing more than to have no further contact with him." Further, SCHECHTER notes that when he filed an affirmation in support of being relieved, "I was careful not to divulge information which would be harmful to plaintiff or his case." Plaintiff failed to identify any conduct which comes even close to the requirements of an intentional infliction of emotional distress claim. Liability for intentional infliction of emotional distress requires plaintiff to identify conduct by defendants that "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." ( Howell v New York Post Co., Inc., 81 NY2d 115, 122, quoting Murphy v American Home Products Corp., 58 NY2d 293, 303). Plaintiff failed to allege outrageous and extreme conduct by SCHECHTER that could be "utterly intolerable in a civilized community." Therefore, plaintiff's fifth cause of action is dismissed.
The sixth cause of action asserts that SCHECHTER violated plaintiff's civil rights by not providing plaintiff with his original file, including an allegation that the December 12, 2008 OSC violated "my civil right to my property [¶ 72 of verified complaint]." As noted before, SCHECHTER provided plaintiff with a complete copy of his file. Therefore, plaintiff's sixth cause of action is dismissed.
The seventh cause of action alleges slander, claiming that SCHECHTER defamed plaintiff in the December 12, 2008 OSC and in oral arguments on the OSC. In plaintiff's verified complaint, it is unclear as to what plaintiff is claiming was allegedly slanderous. However, even if SCHECHTER made a slanderous statement in his written OSC or oral arguments on the OSC, the statements are absolutely privileged. "[A] statement made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation." ( Martirano v Frost, 25 NY2d 505, 507). ( See Impallomeni v Meiselman, Farber, Packman Eberz, P.C., 272 AD2d 579, 580 [2d Dept 2000]; Goldfeder v Weiss, 250 AD2d 731 [2d Dept 1998]; Fabrizio v Spencer, 248 AD2d 351 [2d Dept 1998]). Therefore, plaintiff's seventh cause of action is dismissed.
The eighth cause of action alleges discrimination because plaintiff is Jewish and SCHECHTER's "tyrannical rant are identical to Gabble antiseptic rants against Jew in Germany [sic] [¶ 87 of verified complaint]." The Court assumes that plaintiff meant to state "Goebbels anti-Semitic rants," referring to Hitler's Minister of Propaganda. SCHECHTER, in ¶ 49 of his affidavit in support of the motion, states "I am not sure what plaintiff is referring to, as I did not make any discriminatory remarks to him. I also note that I am Jewish myself and also of Russian descent." This cause of action fails to identify any basis for discrimination other than plaintiff's claim, in ¶ 87 of the verified complaint, that SCHECHTER is from Austria and "Hitler is from Austria as well. That is racism at it best and that is exactly what fascist did [sic]." Even if SCHECHTER is of Austrian descent, to claim that all Austrians are racists and fascists because Hitler was an Austrian, demonstrates racism and prejudice by plaintiff BREYTMAN, not by SCHECHTER. Therefore, plaintiff's eighth cause of action is dismissed.
It is clear that plaintiff BREYTMAN blames SCHECHTER for his own shortcomings and failure to prevail against the City and plaintiff's former landlord. It was plaintiff BREYTMAN's decision to terminate SCHECHTER and live with the consequences. Plaintiff BREYTMAN, in his obsessive crusade against the City, his former landlord and SCHECHTER, should have heeded the famous admonition given by Cassius to Brutus, in Act I, Scene Two of William Shakespeare's Julius Caesar:
The fault, dear Brutus, is not in our stars, But in ourselves.
Plaintiff precluded from relitigation of the same claims
The Court is concerned that plaintiff BREYTMAN continues to use the scarce resources of the New York State Unified Court System to fruitlessly pursue the same claims. He is no stranger to litigation in Supreme Court, Kings County, Civil Term. The Court should not have to expend resources on the next action by Mr. Breytman that will be a new variation on the same theme of defendants' alleged misdeeds and misconduct. The continued use of the New York State Unified Court System for Mr. Breytman's scorched earth policy against defendants must cease.
Our courts have an interest in preventing the waste of judicial resources by a party who knows that his or lawsuit has no legitimate basis in law or fact and continues to attempt to relitigate resolved claims and issues. ( Martin-Trigona v Capital Cities/ABC, Inc., 145 Misc 2d 405 [Sup Ct, New York County 1989]). The Court, in Sassower v Signorelli ( 99 AD2d 358, 359 [2d Dept 1984]), noted that "public policy mandates free access to the courts . . . and, ordinarily, the doctrine of former adjudication will serve as an adequate remedy against repetitious suits." Then, the Sassower Court observed, in the next paragraph, that: "[n]onetheless, a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that this court and the trial courts can ill afford to lose (see Harrelson v United States, 613 F2d 114). Thus, when, as here, a litigant is abusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation [ emphasis added]."
The instant action, "without the prior written permission of the Court," violates Justice Lewis' February 25, 2009 order, in Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY. Further, nowhere in plaintiff BREYTMAN's opposition papers does he deny sending the extremely offensive letter to SCHECHTER, attached to defendants' motion for summary judgment as exhibit N. Moreover, plaintiff BREYTMAN, despite Court directives, served his opposition papers directly upon SCHECHTER. Plaintiff BREYTMAN's abusive conduct toward SCHECHTER must cease. Pro se litigants whom abuse judicial process have had their access to the courts limited. In Spremo v Babchik ( 155 Misc 2d 796 (Sup Ct, Queens County 1996]), the Court, in enjoining a pro se litigant from instituting any further actions and proceedings in any court in the New York State Unified Court System, cited Sassower and Kane v City of New York, 468 F Supp 586 [SD NY 1979], affd 614 F2d 1288 [2d Cir 1979]). The Kane Court, at 592, held:
The fact that one appears pro se is not a license to abuse the process of the Court and to use it without restraint as a weapon of harassment and libelous bombardment. The injunction herein ordered is fully warranted to put an end to such activity . . . Commencement of action upon action based on the same facts dressed in different garb, after thrice being rejected on the merits and having been repeatedly warned that the claims were barred by res judicata, can only be explained as malicious conduct.
In Muka v New York State Bar Association ( 120 Misc 2d 897 [Sup Ct, Tompkins County 1983]), a pro se plaintiff commenced a fourth unsuccessful lawsuit against the State Bar Association upon various conspiracy theories. The Court in dismissing the action, based upon res judicata, observed, at 903, that "all litigants have a right to impartial and considered justice. Insofar as any litigant unnecessarily consumes inordinate amounts of judicial time and energy, he or she deprives other litigants of their proper share of these resources. A balance must be kept." Therefore, Mr. Breytman, with his history of abusing the civil justice system, by bringing pro se actions devoid of merit against various defendants and continuing to attempt to obtain his original file in the actions against the City of New York and his former landlord from SCHECHTER, is precluded from relitigating the same claims and issues which waste court resources and is enjoined from bringing any future actions in the New York State Unified Court System against DONALD SCHECHTER and DONALD SCHECHTER, P.C., without the prior approval of the appropriate Administrative Justice or Judge. The Court instructed, in Vogelgesang v Vogelgesang ( 71 AD3d 1132, 1134 [2d Dept 2010], that:
The Supreme Court providently exercised its discretion in enjoining the appellant from filing any further actions or motions in the . . . action without prior written approval. Public policy generally mandates free access to the courts ( see Sassower v Signorelli, 99 AD2d 358, 359 [1984]). However, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will ( see Duffy v Holt-Harris, 260 AD2d 595 [2d Dept 1999]; Shreve v Shreve, 229 AD2d 1005 [2d Dept 1996]). There is ample basis in this record to support the Supreme Court's determination to prevent the appellant from engaging in further vexatious litigation.
( See Capogrosso v Kansas , 60 AD3d 522 [1d Dept 2009]; Simpson v Ptaszynska , 41 AD3d 607 [2d Dept 2007]; Pignataro v Davis , 8 AD3d 487 [2d Dept 2004]; Cangro v Cangro, 288 AD2d 417 [2d Dept 2001]; Mancini v Mancini, 269 AD2d 366 [2d Dept 2000]; Braten v Finkelstein, 235 AD2d 513 [2d Dept 1997]).
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C., for summary judgment and dismissal of plaintiff ALEXANDER BREYTMAN's complaint, pursuant to CPLR Rule 3212 (a), is granted; and it is further
ORDERED, that the instant complaint is dismissed with prejudice; and it is further
ORDERED, the cross-motion of plaintiff ALEXANDER BREYTMAN, for a sanction of $10,000.00 against defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C., pursuant to 22 NYCRR § 130-1.1, is denied; and it is further
ORDERED, that plaintiff ALEXANDER BREYTMAN is hereby enjoined from commencing any future actions in the New York State Unified Court System against DONALD SCHECHTER and DONALD SCHECHTER, P.C., without the prior approval of the appropriate Administrative Justice or Judge; and it is further
ORDERED, that any violation of the above injunction by ALEXANDER BREYTMAN will subject ALEXANDER BREYTMAN to costs, sanctions and contempt proceedings.
This constitutes the decision and order of the Court.